Should a candidate for public office be allowed to decide whether a court record that might discredit him should be made public? Does it make a difference if the candidate is an incumbent president of the United States? Two federal courts think that it does.

Criminal trials are presumed to be open to the press and public. It is virtually impossible for judges to close criminal proceedings or to restrict access to records reflecting what transpired there. The access right has been interpreted to include the right to copy judicial records as well.

Occasionally, courts have made exceptions when dealing with videotaped evidence. In 1993, a Maryland appeals court refused to allow the news media to copy a videotape submitted at the trial of an individual accused of the carjacking and murder of Pamela Basu. The court found that the right of access was outweighed by the need to protect the right to a fair trial of another defendant who had yet to be prosecuted.

The court relied on a 1978 U.S. Supreme Court decision, Nixon vs.Warner Communications , which held that broadcasters could not copy the infamous Oval Office tapes played during the trial of Watergate conspirators. Justice Lewis Powell found that the court had a responsibility to exercise "informed discretion" concerning the release of subpoenaed material, and that it was inappropriate to permit copying that would "gratify private spite or public scandal" or "further the commercial plans" of the media or others, without the assurance of a public benefit. The high court also found that First Amendment interests were satisfied by allowing the media to listen to the tapes in open court and to obtain written transcripts.

Subsequent federal court decisions similarly restricted the media's right to copy videotaped depositions of sitting Presidents Ford and Carter. On the other hand, the federal district court in Washington, D.C., ruled in 1990 that the press could copy the videotaped deposition of former President Reagan after it was introduced into evidence in the criminal trial of former National Security Advisor John Poindexter.

Against this backdrop, several news organizations asked the federal court in Little Rock for permission to copy President Clinton's videotaped deposition in the criminal fraud trial of then-Gov. Jim Guy Tucker and James and Susan McDougal. They argued that only compelling national security, privacy or fair trial interests would justify sealing the tape, especially after it had been played in open court. Although a written transcript had been released, the media contended that it did not convey the president's demeanor, facial expressions or speech inflections, all of which the public had the right to see and hear.

The Justice Department opposed the request, saying that because cameras were not permitted to photograph any other witnesses during the federal criminal trial, allowing the videotape to be copied and disseminated would mean the president would be singled out for a "highly intrusive and potentially abusive form of access." Briefs filed on behalf of President Clinton argued that the tape would be used in "attack ads" by his political opponents.

In June, federal Judge George Howard held that the press had no constitutional right to copy the tape, and that access rights were fully satisfied by allowing the public to attend the trial and to obtain written transcripts. Any common law access rights, he concluded, were outweighed by the considerations raised by Justice and the president's personal counsel.

Howard wrote that he did not believe the media had improper motives for seeking the videotape, nor that they would distort or misuse it. But "once released and rebroadcast, the press cannot maintain control over individuals who might copy the broadcast and edit it to suit their purposes," he wrote, an oblique reference to the outspoken efforts of Floyd Brown, chair of Citizens United and creator of the Willie Horton ad in the 1988 presidential campaign, to obtain and use the tape during the run-up to the election.

Attempting to have the ruling overturned, lawyers for the media argued before the Eighth Circuit Court of Appeals that Judge Howard's decision allowed the president to control whether an otherwise public record would be released. Fear of misuse in a political campaign is not a compelling interest that would justify secrecy, they said.

But just hours after hearing oral arguments, the appeals panel unanimously upheld the trial court.

The judges apparently were swayed by arguments that the videotape might be used improperly. But however distasteful such use might be to some, it is political speech protected by the First Amendment. The interests of a candidate should never be allowed to impede the public's right to obtain a judicial record, even – or perhaps especially – in a case involving the president himself. l

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